Obama forgets Marbury v. Madison

It’s refreshing to see Democrats worried about an “activist” court, since they haven’t complained about justices “legislating from the bench” when they advance their pet issues. But President Obama’s recent rants against the prospect of the Supreme Court striking down Obamacare when it hasn’t even happened yet–unless someone leaked their secret vote–is strangely oblivious to what the Supreme Court does all the time. From a Wall Street Journal editorial:

President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison?

That’s a fair question after Mr. Obama’s astonishing remarks on Monday at the White House when he ruminated for the first time in public on the Supreme Court’s recent ObamaCare deliberations. “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he declared.

Presidents are paid to be confident about their own laws, but what’s up with that “unprecedented”? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a “democratically elected” legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by “strong” majorities.

As it happens, probably stronger majorities than passed the Affordable Care Act. Readers may recall that the law was dragooned through a reluctant Senate without a single GOP vote and barely the 60 votes needed to break a filibuster. Despite a huge Democratic majority in the House, it passed by only 219-212.

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

http://theoldadam.wordpress.com Steve Martin

I’d like to be able to forget Obama.

http://theoldadam.wordpress.com Steve Martin

I’d like to be able to forget Obama.

Van Edwards

Al Mohler made an excellent point in this morning’s “The Briefing” comparing this statement to the actual overwhelming majority that passed the Defense of Marriage Act and Obama’s direction to the justice department not to defend it. How is that not a form of judicial activism?

Van Edwards

Al Mohler made an excellent point in this morning’s “The Briefing” comparing this statement to the actual overwhelming majority that passed the Defense of Marriage Act and Obama’s direction to the justice department not to defend it. How is that not a form of judicial activism?

Joe

And there have been two interesting developments:

1. The 5th circuit court of appeals, which is hearing a separate challenge to Obamacare has ordered the DOJ to submit a letter brief explaining the administration’s position on whether the court has the power to strike down an unconstitutional law:

“The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. ”

1. The 5th circuit court of appeals, which is hearing a separate challenge to Obamacare has ordered the DOJ to submit a letter brief explaining the administration’s position on whether the court has the power to strike down an unconstitutional law:

“The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. ”

The Left has for years been telling us that the Constitution is a ‘living document’ and hence it means whatever 5 justices say it means, thus the defense of the penumbra of Roe v Wade. Now their method come back to bit them. I recall a scene from Robert Bolt’s classic, A Man for All Seasons-

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

http://gslcnm.com Pastor Spomer

The Left has for years been telling us that the Constitution is a ‘living document’ and hence it means whatever 5 justices say it means, thus the defense of the penumbra of Roe v Wade. Now their method come back to bit them. I recall a scene from Robert Bolt’s classic, A Man for All Seasons-

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Morgan

Look, there’s no “forgetting” here. Just some basic politics:

1. Our side wants this law to be upheld. 2. The Court is a threat to the law. 3. Say and do whatever we need to say, wherever we need to say or do it in order to prevent the Court from striking down the law.

In this scenario, Marbury doesn’t matter. Consistency doesn’t matter. The rule of law, checks and balances or whatever… none of it matters. Winning the issue matters to these guys. And absolutely everything is acceptable whenever you’re ‘doing good’ or ‘doing the right thing’ or ‘helping people,’ however you define all that.

People are making this overly complex.

Morgan

Look, there’s no “forgetting” here. Just some basic politics:

1. Our side wants this law to be upheld. 2. The Court is a threat to the law. 3. Say and do whatever we need to say, wherever we need to say or do it in order to prevent the Court from striking down the law.

In this scenario, Marbury doesn’t matter. Consistency doesn’t matter. The rule of law, checks and balances or whatever… none of it matters. Winning the issue matters to these guys. And absolutely everything is acceptable whenever you’re ‘doing good’ or ‘doing the right thing’ or ‘helping people,’ however you define all that.

People are making this overly complex.

Random Lutheran

Someone from Chicago was elected president. What did people possibly expect from such a candidate, other than more (and more) politics-as-power? The Constitution (indeed, law in general) is but a handy façade for those from that Machine.

Random Lutheran

Someone from Chicago was elected president. What did people possibly expect from such a candidate, other than more (and more) politics-as-power? The Constitution (indeed, law in general) is but a handy façade for those from that Machine.

Dr. Luther in the 21st Century

I don’t blame Obama for defending his pet legislation. What I find hilarious is a professor of law claiming it in unprecedented for a Supreme Court to strike down a law. Seriously, has all SCOTUS done is pat congress on the back? Either Obama seriously misspoke or he needs to fire his fact checkers.

Dr. Luther in the 21st Century

I don’t blame Obama for defending his pet legislation. What I find hilarious is a professor of law claiming it in unprecedented for a Supreme Court to strike down a law. Seriously, has all SCOTUS done is pat congress on the back? Either Obama seriously misspoke or he needs to fire his fact checkers.

rlewer

What would happen with no accountablity in a second term? Already the federal agencies are writing their own laws. These are the real “unelected” lawmakers.

rlewer

What would happen with no accountablity in a second term? Already the federal agencies are writing their own laws. These are the real “unelected” lawmakers.

Jerry

You reach back and use what worked before. The President learned as a community organizer to bully the powers to be into getting his way; however, he not used to them pushing back. Hope he’s met his match…

Jerry

You reach back and use what worked before. The President learned as a community organizer to bully the powers to be into getting his way; however, he not used to them pushing back. Hope he’s met his match…

DonS

The left is used to using the courts to impose policies the people are unwilling to impose democratically. The courts are a political instrument to them. It is unthinkable to Obama that they would actually work against liberal political objectives by adhering to constitutional principles.

Again, as I have commented previously, the only reasonable chance Obama had to successfully move into this new arena of mandating commerce would have been to narrowly tailor the mandate to achieve his stated objective of preventing people from cost-shifting to other people by not carrying insurance for the extraordinary and usually unavoidable medical costs we all face. He could have at least made an argument that would have been a close one to the Court. But, he got greedy. He didn’t just mandate minimal catastrophic coverage. He mandated very expensive first dollar comprehensive coverage, with many new mandated benefits, including the controversial birth control package, so that young people are forced to heavily subsidize the health costs of older people. By mandating coverage to prevent even having to pay reasonable costs of deductibles and copayments, he loses the right to say that the health care market is unique because of its heavy costs. Now, it’s just like food and shelter, which we also all require, and if I were the Court, that would be the reason to strike this particular law down. There is no factor by which one can limit this exception to health care. If this law is upheld, what is to prevent the federal government from mandating that we purchase food insurance or shelter insurance, for example, or some such nonsense, to ensure that people don’t cost-shift their food and shelter needs to others?

DonS

The left is used to using the courts to impose policies the people are unwilling to impose democratically. The courts are a political instrument to them. It is unthinkable to Obama that they would actually work against liberal political objectives by adhering to constitutional principles.

Again, as I have commented previously, the only reasonable chance Obama had to successfully move into this new arena of mandating commerce would have been to narrowly tailor the mandate to achieve his stated objective of preventing people from cost-shifting to other people by not carrying insurance for the extraordinary and usually unavoidable medical costs we all face. He could have at least made an argument that would have been a close one to the Court. But, he got greedy. He didn’t just mandate minimal catastrophic coverage. He mandated very expensive first dollar comprehensive coverage, with many new mandated benefits, including the controversial birth control package, so that young people are forced to heavily subsidize the health costs of older people. By mandating coverage to prevent even having to pay reasonable costs of deductibles and copayments, he loses the right to say that the health care market is unique because of its heavy costs. Now, it’s just like food and shelter, which we also all require, and if I were the Court, that would be the reason to strike this particular law down. There is no factor by which one can limit this exception to health care. If this law is upheld, what is to prevent the federal government from mandating that we purchase food insurance or shelter insurance, for example, or some such nonsense, to ensure that people don’t cost-shift their food and shelter needs to others?

Rose

Jerry, Great comment. There were so many times that Obama got a pass when his credentials and associations were questioned. This is the tragic conclusion of affirmative action run amuck.

Rose

Jerry, Great comment. There were so many times that Obama got a pass when his credentials and associations were questioned. This is the tragic conclusion of affirmative action run amuck.

http://www.toddstadler.com/ tODD

A Democrat and a Republican were having a drink at a bar. The Republican said to the Democrat, “See that guy over there? He’s a judge.”

“How can you tell?” asked the Democrat.

“He always orders the same thing every time he’s in here,” said the Republican, adding, “That’s because of his concern for following precedent.”

Overhearing all this, the object of their conversation turned around and said, “Indeed, I am a judge. However, sorry, I don’t always order the same drink.”

“Oh, and he’s an activist judge too!” said the Republican.

“How can you tell?” asked the Democrat.

The Republican replied, “Well, he disagreed with me!”

http://www.toddstadler.com/ tODD

A Democrat and a Republican were having a drink at a bar. The Republican said to the Democrat, “See that guy over there? He’s a judge.”

“How can you tell?” asked the Democrat.

“He always orders the same thing every time he’s in here,” said the Republican, adding, “That’s because of his concern for following precedent.”

Overhearing all this, the object of their conversation turned around and said, “Indeed, I am a judge. However, sorry, I don’t always order the same drink.”

“Oh, and he’s an activist judge too!” said the Republican.

“How can you tell?” asked the Democrat.

The Republican replied, “Well, he disagreed with me!”

http://www.toddstadler.com/ tODD

It is nice to see my “conservative” friends suddenly decide that the judiciary isn’t completely bad, after all — now that they seem poised to strike down a key piece of Democratic legislation, at least (all coincidence, I’m sure).

Of course, one might note that not a few “conservatives” have actually claimed that Marbury v. Madison was itself the first example of “judicial activism”, in which the Court arrogated powers to itself that were not actually found in the Constitution.

So you will perhaps allow me a slight chuckle at the usual carping about “living document” and all that. Judicial review is clearly a very well established precedent, but where will I find it in the Constitution, Pastor Spomer (@4)? In short, it’s a bit odd to see the same person decrying the notion of a “living” Constitution, and yet rallying behind judicial review.

But then, this really isn’t about legal precedent or any of that, is it? It’s just about people’s opposition to Democratic legislation. And that’s fine. And it’s about Obama’s ridiculous claims. And that’s fine, too.

http://www.toddstadler.com/ tODD

It is nice to see my “conservative” friends suddenly decide that the judiciary isn’t completely bad, after all — now that they seem poised to strike down a key piece of Democratic legislation, at least (all coincidence, I’m sure).

Of course, one might note that not a few “conservatives” have actually claimed that Marbury v. Madison was itself the first example of “judicial activism”, in which the Court arrogated powers to itself that were not actually found in the Constitution.

So you will perhaps allow me a slight chuckle at the usual carping about “living document” and all that. Judicial review is clearly a very well established precedent, but where will I find it in the Constitution, Pastor Spomer (@4)? In short, it’s a bit odd to see the same person decrying the notion of a “living” Constitution, and yet rallying behind judicial review.

But then, this really isn’t about legal precedent or any of that, is it? It’s just about people’s opposition to Democratic legislation. And that’s fine. And it’s about Obama’s ridiculous claims. And that’s fine, too.

http://www.toddstadler.com/ tODD

Random Lutheran said (@6):

Someone from Chicago was elected president. What did people possibly expect from such a candidate, other than more (and more) politics-as-power?

And what part of the country are you from, sir? I need to know so I can use my broad brush to slander your area as given to using poor logic.

Rose said (@11)

This is the tragic conclusion of affirmative action run amuck.

Way to keep it classy, Rose. When the knee-jerk liberals come on this site and claim that opposition to Obama is really all about race, now they’ll have something to back up their assertion with.

http://www.toddstadler.com/ tODD

Random Lutheran said (@6):

Someone from Chicago was elected president. What did people possibly expect from such a candidate, other than more (and more) politics-as-power?

And what part of the country are you from, sir? I need to know so I can use my broad brush to slander your area as given to using poor logic.

Rose said (@11)

This is the tragic conclusion of affirmative action run amuck.

Way to keep it classy, Rose. When the knee-jerk liberals come on this site and claim that opposition to Obama is really all about race, now they’ll have something to back up their assertion with.

tODD, it is a broad brush, that is true. But it is also true that four recent governors from Illinois went to prison. What are the odds?

formerly just steve

Pastor Spomer, #4, classic! I can’t even read it without hearing Scofield’s voice in my head.

formerly just steve

Pastor Spomer, #4, classic! I can’t even read it without hearing Scofield’s voice in my head.

reg

A president using the bully pulpit to rail against judges’ actions is hardly unprecedented or even unusual . Just google “a stitch in time saves nine” to see how FDR had his own battle with the Courts or recall how Ronald Reagan railed against judges and rulings in his quest to achieve “tort reform.” These are just two examples. I find the feigned outrage at the President, kind of humorous.

reg

A president using the bully pulpit to rail against judges’ actions is hardly unprecedented or even unusual . Just google “a stitch in time saves nine” to see how FDR had his own battle with the Courts or recall how Ronald Reagan railed against judges and rulings in his quest to achieve “tort reform.” These are just two examples. I find the feigned outrage at the President, kind of humorous.

DonS

tODD @ 13:

It is nice to see my “conservative” friends suddenly decide that the judiciary isn’t completely bad, after all — now that they seem poised to strike down a key piece of Democratic legislation, at least (all coincidence, I’m sure).

How about Citizens United? Conservatives are always glad to have the Court re-affirm the limits of the Constitution when Congress forgets. Again, as I’ve said before, conservatives are opposed to the Courts establishing government policy, i.e. by “finding” new rights in the Constitution that overturn established statutory law. That is the definition of judicial activism. They are not opposed to enforcing Constitutional limits that are written in black and white, like the right to free exercise or the limits on the Commerce Clause.

Of course, one might note that not a few “conservatives” have actually claimed that Marbury v. Madison was itself the first example of “judicial activism”, in which the Court arrogated powers to itself that were not actually found in the Constitution.

That’s a bit of an overstatement. A few “fringies” might object to Marbury, but judicial review is well established doctrine, accepted by the vast majority of conservatives, who recognize that judicial review is a necessary check on Congressional power, and a legitimate part of the checks and balances the Founders intended. The Judiciary Act of 1789, after all, authorized federal court review of state court cases when those state courts were engaging in judicial review of federal statutes. Marbury wasn’t that controversial at the time, which was almost contemporaneous with the U.S. Constitution. Judicial review was a well established state practice and it just so happened that Marbury was just the first ripe case overturning a Congressional statute. On three prior occasions, following negative decisions by lower federal or state courts, Congress had simply withdrawn the statute under review before the Supreme Court reached it. Though it wasn’t specifically called out in the Constitution, there was no significant opposition to the notion that it was intended by the Founders.

DonS

tODD @ 13:

It is nice to see my “conservative” friends suddenly decide that the judiciary isn’t completely bad, after all — now that they seem poised to strike down a key piece of Democratic legislation, at least (all coincidence, I’m sure).

How about Citizens United? Conservatives are always glad to have the Court re-affirm the limits of the Constitution when Congress forgets. Again, as I’ve said before, conservatives are opposed to the Courts establishing government policy, i.e. by “finding” new rights in the Constitution that overturn established statutory law. That is the definition of judicial activism. They are not opposed to enforcing Constitutional limits that are written in black and white, like the right to free exercise or the limits on the Commerce Clause.

Of course, one might note that not a few “conservatives” have actually claimed that Marbury v. Madison was itself the first example of “judicial activism”, in which the Court arrogated powers to itself that were not actually found in the Constitution.

That’s a bit of an overstatement. A few “fringies” might object to Marbury, but judicial review is well established doctrine, accepted by the vast majority of conservatives, who recognize that judicial review is a necessary check on Congressional power, and a legitimate part of the checks and balances the Founders intended. The Judiciary Act of 1789, after all, authorized federal court review of state court cases when those state courts were engaging in judicial review of federal statutes. Marbury wasn’t that controversial at the time, which was almost contemporaneous with the U.S. Constitution. Judicial review was a well established state practice and it just so happened that Marbury was just the first ripe case overturning a Congressional statute. On three prior occasions, following negative decisions by lower federal or state courts, Congress had simply withdrawn the statute under review before the Supreme Court reached it. Though it wasn’t specifically called out in the Constitution, there was no significant opposition to the notion that it was intended by the Founders.

DonS

reg @ 18: I trust that you understand that FDR is considered by many to have been way out of line in the “Court Packing” era, and his prior example is the reason why so many are alarmed by Obama’s similar bullying tactics. As to your Reagan example, there is a vast difference between complaining about issued court decisions and deliberately politicizing a matter by trying to influence or intimidate the Court while it is active deliberation on a not yet decided case.

DonS

reg @ 18: I trust that you understand that FDR is considered by many to have been way out of line in the “Court Packing” era, and his prior example is the reason why so many are alarmed by Obama’s similar bullying tactics. As to your Reagan example, there is a vast difference between complaining about issued court decisions and deliberately politicizing a matter by trying to influence or intimidate the Court while it is active deliberation on a not yet decided case.

Steve Billingsley

I don’t find Obama complaining about what he thinks the Supreme Court is going to do regarding the ACA disturbing at all. I do find it a bit ridiculous that he seemed shocked at the idea of the Court overturning a law passed by Congress. I am pretty sure that he knows about Marbury v Madison and a whole host of other cases where the Court overturned laws that were passed by a democratically elected Congress. He’s working the refs, nothing more, nothing less – trying to influence the outcome.

The “strong majority” part of the statement was a bit of a giggle as well. And given the way the Fifth Circuit responded to it, I don’t know that it will be all that successful of an attempt to work the refs.

More than anything, it smacks a bit of desperation to me.

Steve Billingsley

I don’t find Obama complaining about what he thinks the Supreme Court is going to do regarding the ACA disturbing at all. I do find it a bit ridiculous that he seemed shocked at the idea of the Court overturning a law passed by Congress. I am pretty sure that he knows about Marbury v Madison and a whole host of other cases where the Court overturned laws that were passed by a democratically elected Congress. He’s working the refs, nothing more, nothing less – trying to influence the outcome.

The “strong majority” part of the statement was a bit of a giggle as well. And given the way the Fifth Circuit responded to it, I don’t know that it will be all that successful of an attempt to work the refs.

More than anything, it smacks a bit of desperation to me.

Joe

The definition of an activist judge is really a squishy thing. Not because the term is inherently meaningless but because as tODD notes it often simply means “you disagree with me.” The term has all but become useless.

The issue now that the president has clarified is the fact that this former constitutional law professor has no idea that the Lochner case is completely irrelevant (even as an analogy) to this situation.

Joe

The definition of an activist judge is really a squishy thing. Not because the term is inherently meaningless but because as tODD notes it often simply means “you disagree with me.” The term has all but become useless.

The issue now that the president has clarified is the fact that this former constitutional law professor has no idea that the Lochner case is completely irrelevant (even as an analogy) to this situation.

Michael B.

“actual overwhelming majority that passed the Defense of Marriage Act and Obama’s direction to the justice department not to defend it. How is that not a form of judicial activism?”

Suppose the majority voted to not allow a black man and white woman get married, and the judge strikes it down. Is that judicial activism?

Michael B.

“actual overwhelming majority that passed the Defense of Marriage Act and Obama’s direction to the justice department not to defend it. How is that not a form of judicial activism?”

Suppose the majority voted to not allow a black man and white woman get married, and the judge strikes it down. Is that judicial activism?

Dr. Luther in the 21st Century

@#14 I currently live in the Chicago area and the folks here say the same thing as Random Lutheran. So to be fair they are painting with the same brush as the locals. I have even heard the same sentiment from local Democrats.

Dr. Luther in the 21st Century

@#14 I currently live in the Chicago area and the folks here say the same thing as Random Lutheran. So to be fair they are painting with the same brush as the locals. I have even heard the same sentiment from local Democrats.

helen

I was brought up in the Midwest to believe that New York City was run by the Mafia and Chicago was run by “the second stringers” but still the Mob. Tales of the St Valentine’s Day massacre and the mystery of Jimmy Hoffa may have contributed.

From there to the last governor….(sorry, can’t spell it!)

helen

I was brought up in the Midwest to believe that New York City was run by the Mafia and Chicago was run by “the second stringers” but still the Mob. Tales of the St Valentine’s Day massacre and the mystery of Jimmy Hoffa may have contributed.

From there to the last governor….(sorry, can’t spell it!)

PETER

The late Professor Nathaniel Nathanson ( picture appears in 2011 John Paul Stevens book) taught Marbury to our Northwestern University law school class for 6 weeks. I believe Newt has argued it was decided wrong. I believe the government did not raise it in their briefs to the court.

PETER

The late Professor Nathaniel Nathanson ( picture appears in 2011 John Paul Stevens book) taught Marbury to our Northwestern University law school class for 6 weeks. I believe Newt has argued it was decided wrong. I believe the government did not raise it in their briefs to the court.